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District Court of Appeal, Second District, Division 2, California.


Civ. 16778.

Decided: November 17, 1948

Combs, McIntyre & Scales, of Los Angeles, for petitioner. Meserve, Mumper & Hughes, Loeb & Loeb, Roy L. Herndon and Herman F. Selvin all of Los Angeles, for respondent Cameron. Harold W. Kennedy, County Counsel and Douglas De Coster, Deputy County Counsel, both of Los Angeles, for respondent Superior Court.

In an action in respondent court petitioner recovered a money judgment against respondent Adrian E. Cameron. Pursuant to section 2422 of the Civil Code she applied to the court for an order charging the interest of respondent Cameron in a partnership known as Motor Rim and Wheel Service of which he was a half owner. On November 7, 1947, her motion was granted and a charging order was made. On January 19, 1948, she filed a notice of motion for an order foreclosing the charging order and directing a sale of Mr. Cameron's partnership interest. On February 17, 1948, her motion was denied. On April 5, 1948, petitioner appealed from the order and the appeal is now pending in this court.

On March 12, 1948, petitioner filed in this court a petition for a writ of mandate to compel the superior court to entertain her motion for an order of foreclosure. The petition was denied without opinion on March 16, 1948. Cameron v. Superior Court, No. 16423.

On April 14, 1948, notwithstanding the pendency of the appeal from the previous order denying her motion for an order of foreclosure, petitioner presented to the superior court another petition for the foreclosure of the charging order and on the same day the court entered an order declining to entertain the petition. By the proceeding now before this court petitioner seeks a writ to compel respondent court to entertain and act on the last petition presented by her to that court.

The petition must be denied for two reasons: (1) The judgment on which the charging order was based has been reversed by this court in an opinion this day filed. Cameron v. Cameron, Cal.App., 199 P.2d 443. (2) The petition filed in the superior court April 14, 1948, sought substantially the same relief as did the previous petition filed January 19, 1948. The order of this court made on March 16, 1948, in No. 16423, denying mandamus to compel respondent court to entertain the first petition for an order of foreclosure is res judicata in the instant proceeding.

The petition for a writ of mandate is denied and the alternative writ is discharged.

WILSON, Justice.

MOORE, P. J., and McCOMB, J., concur.